§ 1102 — Prepayment of sales tax on motor fuel and diesel motor fuel

§ 1102. Prepayment of sales tax on motor fuel and diesel motor fuel.\n(a) * (1) Every distributor of motor fuel shall pay, as a prepayment on\naccount of the taxes imposed by this article and pursuant to the\nauthority of article twenty-nine of this chapter, a tax on each gallon\nof motor fuel (i) which he imports or causes to be imported into this\nstate for use, distribution, storage or sale in the state or produces,\nrefines, manufactures or compounds in this state or (ii) if the tax has\nnot been imposed prior to its sale in this state, which he sells (which\nacts shall in regard to motor fuel hereinafter in this article be\nencompassed by the phrase "imported, manufactured or sold"), except when\nimported, manufactured or sold under circumstances which preclude the\ncollection of such tax by reason of the United States constitution and\nof the laws of the United States enacted pursuant thereto or when\nimported or manufactured by an organization described in paragraph one\nor two of subdivision (a) of section eleven hundred sixteen of this\narticle or a hospital included in the organizations described in\nparagraph four of such subdivision for its own use and consumption and\nexcept kero-jet fuel when imported by an airline for use in its\nairplanes, and except CNG, and except hydrogen, and except E85 when\ndelivered to a filling station and placed in a storage tank of such\nfilling station for such E85 to be dispensed directly into a motor\nvehicle for use in the operation of such vehicle, and except aviation\ngasoline sold for use in commercial aircraft and general aviation\naircraft.\n * NB Effective until September 1, 2026\n * (1) Every distributor of motor fuel shall pay, as a prepayment on\naccount of the taxes imposed by this article and pursuant to the\nauthority of article twenty-nine of this chapter, a tax on each gallon\nof motor fuel (i) which he imports or causes to be imported into this\nstate for use, distribution, storage or sale in the state or produces,\nrefines, manufactures or compounds in this state or (ii) if the tax has\nnot been imposed prior to its sale in this state, which he sells (which\nacts shall in regard to motor fuel hereinafter in this article be\nencompassed by the phrase "imported, manufactured or sold"), except when\nimported, manufactured or sold under circumstances which preclude the\ncollection of such tax by reason of the United States constitution and\nof the laws of the United States enacted pursuant thereto or when\nimported or manufactured by an organization described in paragraph one\nor two of subdivision (a) of section eleven hundred sixteen of this\narticle or a hospital included in the organizations described in\nparagraph four of such subdivision for its own use and consumption and\nexcept kero-jet fuel when imported by an airline for use in its\nairplanes, and except aviation gasoline sold for use in commercial\naircraft and general aviation aircraft.\n * NB Effective September 1, 2026\n * (2) Every distributor of diesel motor fuel shall pay, as a\nprepayment on account of the taxes imposed by this article and pursuant\nto the authority of article twenty-nine of this chapter, a tax upon the\nsale or use of diesel motor fuel in this state. The tax shall be\ncomputed based upon the number of gallons of diesel motor fuel sold or\nused. Provided, however, if the tax has not been imposed prior thereto,\nit shall be imposed on the removal of highway diesel motor fuel from a\nterminal, other than by pipeline, barge, tanker or other vessel, or the\ndelivery of diesel motor fuel to a retail service station. The\ncollection of such tax shall not be made applicable to the sale or use\nof diesel motor fuel under circumstances which preclude the collection\nof such tax by reason of the United States constitution and of laws of\nthe United States enacted pursuant thereto. The prepaid tax on diesel\nmotor fuel shall not apply to (i) the sale of non-highway Diesel motor\nfuel to a person registered as a distributor of Diesel motor fuel other\nthan a sale to such person which involves a delivery at a filling\nstation or into a repository which is equipped with a hose or other\napparatus by which such fuel can be dispensed into the fuel tank of a\nmotor vehicle; (ii) the sale to or delivery at a filling station or\nother retail vendor of water-white kerosene provided such filling\nstation or other retail vendor only sells such water-white kerosene\nexclusively for heating purposes in containers of no more than twenty\ngallons or to the sale of CNG or hydrogen; (iii) the sale of previously\nuntaxed qualified biodiesel, as defined in subdivision twenty-three of\nsection two hundred eighty-two of this chapter, to a person registered\nunder article twelve-A of this chapter as a distributor of Diesel motor\nfuel other than (A) a retail sale to such person or (B) a sale to such\nperson which involves a delivery at a filling station or into a\nrepository which is equipped with a hose or other apparatus by which\nsuch qualified biodiesel can be dispensed into the fuel tank of a motor\nvehicle; or (iv) the sale of previously untaxed highway diesel motor\nfuel by a person registered under article twelve-A of this chapter as a\ndistributor of diesel motor fuel to a person registered under such\narticle twelve-A as a distributor of diesel motor fuel where the highway\ndiesel motor fuel is either: (A) being delivered by pipeline, railcar,\nbarge, tanker or other vessel to a terminal, the operator of which\nterminal is registered under section two hundred eighty-three-b of this\nchapter, or (B) within such a terminal where it has been so delivered.\nProvided, however, that the exemption set forth in this subparagraph\nshall not apply to any highway diesel motor fuel if it is removed from a\nterminal, other than by pipeline, barge, tanker or other vessel.\n * NB Effective until September 1, 2026\n * (2) Every distributor of diesel motor fuel shall pay, as a\nprepayment on account of the taxes imposed by this article and pursuant\nto the authority of article twenty-nine of this chapter, a tax upon the\nsale or use of diesel motor fuel in this state. The tax shall be\ncomputed based upon the number of gallons of diesel motor fuel sold or\nused. Provided, however, if the tax has not been imposed prior thereto,\nit shall be imposed on the removal of highway diesel motor fuel from a\nterminal, other than by pipeline, barge, tanker or other vessel, or the\ndelivery of diesel motor fuel to a retail service station. The\ncollection of such tax shall not be made applicable to the sale or use\nof diesel motor fuel under circumstances which preclude the collection\nof such tax by reason of the United States constitution and of laws of\nthe United States enacted pursuant thereto. The prepaid tax on diesel\nmotor fuel shall not apply to (i) the sale of non-highway Diesel motor\nfuel to a person registered as a distributor of Diesel motor fuel other\nthan a sale to such person which involves a delivery at a filling\nstation or into a repository which is equipped with a hose or other\napparatus by which such fuel can be dispensed into the fuel tank of a\nmotor vehicle; (ii) the sale to or delivery at a filling station or\nother retail vendor of water-white kerosene provided such filling\nstation or other retail vendor only sells such water-white kerosene\nexclusively for heating purposes in containers of no more than twenty\ngallons; (iii) the sale of previously untaxed qualified biodiesel, as\ndefined in subdivision twenty-three of section two hundred eighty-two of\nthis chapter to a person registered under article twelve-A of this\nchapter as a distributor of Diesel motor fuel other than (A) a retail\nsale to such person or (B) a sale to such person which involves a\ndelivery at a filling station or into a repository which is equipped\nwith a hose or other apparatus by which such qualified biodiesel can be\ndispensed into the fuel tank of a motor vehicle; or (iv) the sale of\npreviously untaxed highway diesel motor fuel by a person registered\nunder article twelve-A of this chapter as a distributor of diesel motor\nfuel to a person registered under such article twelve-A as a distributor\nof diesel motor fuel where the highway diesel motor fuel is either: (A)\nbeing delivered by pipeline, railcar, barge, tanker or other vessel to a\nterminal, the operator of which terminal is registered under section two\nhundred eighty-three-b of this chapter, or (B) within such a terminal\nwhere it has been so delivered. Provided, however, that the exemption\nset forth in this subparagraph shall not apply to any highway diesel\nmotor fuel once it is removed from a terminal, other than by pipeline,\nbarge, tanker or other vessel.\n * NB Effective September 1, 2026\n (3) The amount of such prepayment per gallon shall be computed\npursuant to the provisions of subdivision (e) of section eleven hundred\neleven of this article. Provided, further, no motor fuel or diesel motor\nfuel shall be included in the measure of the tax under clause (i) of\nparagraph one and paragraph two of this subdivision unless it shall have\npreviously come to rest within the meaning of federal decisional law\ninterpreting the United States constitution.\n (b) The taxes required to be prepaid pursuant to this section shall be\nadministered and collected in a like manner as the taxes imposed by\nsections eleven hundred five and eleven hundred ten of this article. All\nthe provisions of this article relating to or applicable to the\nadministration, collection and disposition of the taxes imposed by such\nsections shall apply to the tax required to be prepaid under this\nsection so far as such provisions can be made applicable to such\nprepayments of tax with such limitations as set forth in this article\nand such modifications as may be necessary in order to adapt such\nlanguage to the tax so imposed, provided, however, that the provisions\nof paragraph one of subdivision (c) of section eleven hundred\nthirty-seven of this article and the reference in section eleven hundred\nthirty-seven-A of this article to such paragraph one of subdivision (c)\nof section eleven hundred thirty-seven shall not be applicable to such\ntax required to be prepaid under this section. Such provisions shall\napply with the same force and effect as if the language of those\nprovisions had been set forth in full in this section except to the\nextent that any provision is either inconsistent with a provision of\nthis section or is not relevant to the tax required to be prepaid by\nthis section. For purposes of this section, any reference in this\narticle to the tax or taxes imposed by this article shall be deemed to\nrefer to the tax required to be prepaid pursuant to this section unless\na different meaning is clearly required. Provided, further, that, except\nas otherwise provided in subdivision (j) of section eleven hundred\nfifteen of this article and except as otherwise provided in paragraph\nfive of subdivision (b) of section eleven hundred sixteen of this\narticle, the exemptions provided in such sections (other than that\nprovided in paragraph nine of subdivision (a) of such section eleven\nhundred fifteen with respect to purchases of kero-jet fuel) shall not\napply to the tax required to be prepaid under this section.\n (c) Nothing in this article shall be construed to require the payment\nof the tax required to be prepaid pursuant to this section more than\nonce upon motor fuel or diesel motor fuel sold within the state. When\nthe foregoing prepaid tax imposed pursuant to this section is paid it\nshall have been so paid on account of the taxes imposed by this article\nor pursuant to the authority of article twenty-nine of this chapter with\nrespect to the retail sale or use of motor fuel or diesel motor fuel.\nNothing in this section shall modify or affect the taxes imposed by\nsections eleven hundred five and eleven hundred ten of this article as\napplied to receipts from the sale or use of such fuel.\n (d) Deposit and disposition of revenue. (1) Consistent with sections\neleven hundred forty-eight and twelve hundred sixty-one of this chapter,\nthe taxes imposed pursuant to this section and interest and penalties\nthereon received by the commissioner, after deducting the amount which\nthe commissioner of taxation and finance or his delegate shall determine\nto be necessary for reasonable costs of the commissioner in\nadministering, collecting and distributing such taxes, shall be\ndeposited daily with such responsible banks, banking houses or trust\ncompanies, as may be designated by the comptroller, to the credit of the\ncomptroller. Of the total revenue collected or received under this\nsection, the comptroller shall retain in his hands such amount as the\ncommissioner of taxation and finance may determine to be necessary for\nrefunds under this article and pursuant to the authority of article\ntwenty-nine of this chapter.\n (2) On or before the twelfth day of each month, after reserving such\namount for such refunds and such costs, the commissioner or the\ncommissioner's delegate shall certify to the comptroller the amount of\nall revenues so received during the prior month as a result of the\ntaxes, interest and penalties so imposed and, in addition, on or before\nthe last day of June and December the commissioner or delegate shall\ncertify the amount of such moneys received during and including the\nfirst twenty-five days of said months. At the time the commissioner\nprepares such certification, the commissioner or the commissioner's\ndelegate shall determine the receipts attributable to the amount, and\nnumber of gallons, of motor fuel and diesel motor fuel sold at retail in\neach county and city and in the metropolitan commuter transportation\ndistrict subject to the taxes imposed by sections eleven hundred five\nand eleven hundred ten of this article and the like taxes imposed\npursuant to the authority of article twenty-nine of this chapter and the\ncommissioner or delegate shall certify the portion of such receipts and\ngallons from the total payments that represents the prepaid tax on\naccount of the taxes imposed by this article and pursuant to the\nauthority of article twenty-nine of this chapter (determined without\nregard to the taxes imposed by this section and any like taxes imposed\npursuant to the authority of article twenty-nine of this chapter) based\nupon the retail sales or uses of such fuel in such jurisdiction or\ndistrict. The amount of revenues so certified shall be deposited and\ndistributed by the comptroller in accordance therewith. Where the amount\nso certified in any distribution is more or less than the amount due,\nthe amount of the overpayment or underpayment shall be determined as\nsoon after the discovery of the overpayment or underpayment as is\nreasonably possible and subsequent certifications to the comptroller\nshall be adjusted by subtracting the amount of any such overpayment from\nor by adding the amount of any such underpayment to such number of\nsubsequent payments as the comptroller and the commissioner shall\nconsider reasonable in view of the amount of the overpayment or\nunderpayment and all other pertinent facts and circumstances.\n (e) For the purposes of this section and article twelve-A of this\nchapter the term "use" shall mean, in addition to the meaning set forth\nin paragraph seven of subdivision (b) of section eleven hundred one of\nthis article, the exercise of any right or power over motor fuel or\ndiesel motor fuel by any person, whether or not a purchaser, including,\nbut not limited to, the receiving, the withdrawal from storage or any\nconsumption of such fuel.\n (f) Every wholesaler of motor fuel, as such term is defined by\nsubdivision twenty-seven of section two hundred eighty-two of this\nchapter, shall pay or be entitled to a credit or refund of the tax\nimposed by this section on gallons of motor fuel under the circumstances\nset forth in paragraph three of subdivision (e) of section eleven\nhundred eleven of this article.\n *(g) The tax imposed by this section must be charged on the sale,\nother than a retail sale or a sale that is otherwise exempt under this\narticle, of each gallon of motor fuel or Diesel motor fuel. If the taxes\nimposed by this section have not already been assumed or paid by the\ndistributor on any quantity of such fuel for any reason, including, but\nnot limited to, the expansion of such fuel as a result of temperature\nfluctuation, the distributor must remit such taxes to the commissioner\non the return for the period in which such sale was made.\n * NB Effective September 1, 2023\n